TaxTMI 
TaxTMI 
2021 (3) TMI 446
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....vesting Rs. 50 lacs in their company with the assurance that same would be doubled in five years and relying on such assurances, he invested his lifetime savings with them; and in March-2014 the accused persons failed to return the principal amount with interest being total of Rs. 1 Crore but then he was further inducted to invest Rs. 20 lacs more with the promise to return Rs. 2 crores on or before March-2019 and that MoU dated 26.07.2018 was executed, whereby accused persons undertook to pay the complainant a sum of Rs. 47,53,519/- and a cheque was also issued; and that later MoU dated 05.05.2019 was executed and it was promised that the complainant would be made a partner in the business and receipt of Rs. 50 lacs as principal amount was retained with the promise that it would be safe and secure with them and it would become Rs. 2 crores in 2019: and that on 18.02.2019 another Promissory Note was issued by accused No.2/ Guneet Bhasin in favour of the complainant and his wife acknowledging liability to pay an amount of Rs. 2,47,53,000/- payable to the complainant and his wife on or before 30.06.2019. 3. On 16.07.2019 nine cheques were issued in the tune of Rs. 73,00,000/-. The s....
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....in the present Petitioner is an executive/whole time director. It is pertinent to note that from the Annual Return of the International Trenching Pvt. Ltd. as filed by the Petitioner, it is evident that the Petitioner is holding approximately 50% of shareholding in the company and is categorically stated to be a key managerial personnel. Ile has attended each and every Board meeting and AGM of the said company and is drawing a salary of Rs. 6,60,000/- per annum clearly evidencing that not only he is involved in the day to day affairs as averred but also is a KMP and whole time Director. 8. It is further argued that the present Petitioner in addition to being key managerial personnel at the relevant time is a whole time director drawing a salary is a Director since 2005 as per the ROC company master data and his e-mail is the e-mail for the Company and is part and parcel of the transaction at each step. It is further submitted that there are umpteen number of triable issues which can only be decided during the course of the trial. 9. As far as the contention of the Petitioner regarding the locus of Respondent No. 2 to file the Complaint u/s 138 of the Act, it is submitted the paye....
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....e him on his plea of defense. However, only after disclosing his plea of defence, he can make an application that the case should not be tried summarily but as a summons trial case. 11. An offence under Section 138 of the N.I. Act is technical in nature and defences, which an accused can take, are inbuilt; for instance, the cheque was given without consideration, the accused was not a Director at that time, accused was a sleeping partner or a sleeping Director, cheque was given as a security ctc, etc., the onus of proving these defences is on the accused alone, in view of Section 106 of the Indian Evidence Act, 1872. Since the mandate of the legislature is the trial of such cases in a summary manner, the evidence already given by the complainant by way of affidavit is sufficient proof of the offence and this evidence is not required to be given again in terms of section 145(1) of the N.I. Act and has to be read during the trial. The witnesses i.e. the complainant or other witnesses can be recalled only when the accused makes such an application and this application must disclose the reason why the accused wants to recall the witnesses and on what point the witnesses are to be cros....
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....these cases have been issued, it is now the obligation of the accused to take notice under Section 251 of Cr.P.C., if not already taken, and enter his/her plea of defence before the concerned Metropolitan Magistrate's Court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witnesses, they should do so before the Court of Metropolitan Magistrate. 15. In the instant case the respondent no. 2/complainant in paragraph (3) and subsequent paragraphs of his complaint under Section 138 of N.I. Act has made specific averments that while Accused Nos. 2 and 3 are directors of the company. He has specifically averred that accused persons were personally known to him through common acquaintances and shared a cordial relationship which was the premise, on the basis of which the complainant invested heavily in the funds of the company. The plea raised by the Ld. Counsel for the petitioner that Sumit Bhasin never participated in any negotiations with the complainant cannot be considered at this preliminary stage since such defense can only be considered during the stage of trial. 16. The p....
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....the Trial Court and the same will have to be adjudicated on merits of the case and not by way of invoking jurisdiction under Section 482 Cr.P.C. at this stage. 19. Upon analyzing the provisions of the N.I. Act, it is clear that Section 138 of the Act spells out the ingredients of the offence as well as the conditions required to be fulfilled before initiating the prosecution. 20. These ingredients and conditions are to be satisfied mainly on the basis of documentary evidence, keeping in mind the presumptions under Sections 118 and 139 of the N.I. Act and Section 27 of the General Clauses Act, 1897 as well as the provisions of Section 146 of the Act. 21. The provisions of Sections 142 to 147 lay down a Special Code for the trial of offences under the Chapter XVII of the N.I. Act. While considering the scope and ambit of the amended provisions of the Act, the Supreme Court in Mandvi Co Op Bank Ltd v. Nimesh B. Thakore, AIR 2010 SC 1402, has held that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Cr.P.C, the main body of adjective law for criminal trials. The Supreme Court has further held as under:- "17. It is not diffi....